When Is a Nonprofit Volunteer Really an Employee? Pending Maine Supreme Court Case to Address the Issue
Reprinted with permission from The Maine Nonprofit Law E-Bulletin June 2017, by Robert H. Levin, Attorney-at-Law with the Law Office of Robert H. Levin.
A case currently pending before the Maine Supreme Court will tackle the question of whether an individual who was treated as a volunteer by a nonprofit organization could nevertheless be deemed an employee for the purposes of Maine’s workers’ compensation law. The case is Huff v. Regional Transportation Program, and the Court has asked interested persons to submit amicus briefs by July 14.
Here’s what happened in the case: In 2011, Lawrence Huff became a volunteer driver for the nonprofit Regional Transportation Program (RTP), which provides transportation services to clients of social service agencies in Cumberland County. Huff signed a memorandum of understanding indicating that he was a volunteer, and used his own vehicle to drive RTP constituents. He was reimbursed for expenses at a rate of 41 cents per mile, the then-current IRS rate for employee reimbursement. Because he volunteered almost full-time, the reimbursements amounted to $700 to $800 per week, and Huff claimed to have pocketed half this amount as income net of his vehicle expenses, although that figures apparently didn’t include insurance and depreciation. Unfortunately, in 2012 Huff suffered a life-threatening accident while driving for RTP. He later claimed workers’ compensation benefits as an RTP employee. The Workers’ Compensation Board denied his claim, determining that he was a volunteer and not an employee. The Appellative Division affirmed, and Huff has now appealed to the Maine Supreme Court.
The crux of Huff’s argument is that because RTP’s mileage reimbursement rate matched the IRS’ rate for employees, and is much higher than the 14 cents federal mileage rate that volunteers can receive on a nontaxable basis, he must be considered an employee for workers compensation purposes. However, this argument is not very persuasive in light of the fact that the volunteer mileage rate has not been changed since 1997, as it takes an act of Congress to do so. Thus, it is widely acknowledged that the volunteer rate does not reflect the true cost of driving and maintaining a vehicle, and many nonprofits choose to reimburse at the higher employee mileage rate, even if the amount over 14 cents must be reported as income by the volunteer.
If the Maine Supreme Court were to agree with Huff and reverse the Board’s decision, it could have widespread implications for Maine nonprofit organizations. Many Maine nonprofits benefit from volunteer drivers in the same way that RTP does, and a reversal would mean that these organizations would either have to reduce the reimbursement rate to the artificially depressed IRS charitable rate, or else pay high workers’ compensation costs for driving volunteers. An outcome in favor of the plaintiff could also increase nonprofits’ liability exposure and insurance costs in a variety of other contexts, such as the Maine employment law violations, Maine unemployment compensation, and anti-discrimination laws. The decision could also have similar spillover effects for nonprofits in other states, as there is little to no case law on this issue across the nation. Although volunteers should of course be treated fairly by nonprofits, that does not mean that volunteers should have standing to claim the protection of these various employee protection laws.
If any Maine nonprofit corporation is interested in joining or supporting an amicus brief, please let Jennifer Burns Gray know right away, as Rob is considering whether to draft a brief, and we can connect you.